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Ordinance No. 9,563ORDINANCE NO. 9563 ® AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH PATE ENGINEERS, INC., FOR THE HARDIN ROAD RECONSTRUCTION PROJECT AND ASSOCIATED DRAINAGE WORK; AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN IN AN AMOUNT OF ONE HUNDRED TWO THOUSAND EIGHT HUNDRED THIRTY - THREE AND NO 1100 DOLLARS ($102,833.00); MAKING OTHER PROVISIONS RELATED THERETO; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. U BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section L That the City Council of the City of Baytown, Texas, hereby authorizes and directs the City Manager to execute a professional services agreement with Pate Engineers, Inc., for the Hardin Road Reconstruction Project and associated drainage work. A copy of said agreement is attached hereto, marked Exhibit "A," and made a part hereof for all intents and purposes. Section 2: That the City Council of the City of Baytown authorizes payment to Pate Engineers, Inc., in an amount not to exceed ONE HUNDRED TWO THOUSAND EIGHT HUNDRED THIRTY -THREE AND NO /100 DOLLARS ($102,833.00) for engineering services in accordance with the contract. Section 3: That the City Manager is hereby granted general authority to approve a decrease or an increase in costs by TWENTY -FIVE THOUSAND AND NO /100 DOLLARS ($25,000.00) or less, provided that the amount authorized in Sections 2 hereof may not be increased by more than twenty-five percent (25 %). Section 4: This ordinance shall take effect immediately from and after its passage by the City Council of the City of Baytown. INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City of Baytown this the 22 "d day of May, 2003. PETE C. ALFARO, Mayor ATTEST: _ l GA Y W. SMITH, City Clerk APPROVED AS TO FORM: ACIO RAMIREZ, SR., Ci ttorney FAKarcn \Files \City Council\ Ordinances \Patehlard in Road Reconstruction Project.doc �1� • STANDARD FORM OF AGREEMENT BETWEEN OWNER A1�!D ENGINEER Fk_)RA PROFESSIONAL SERVICES T14IS AGREEMENT effective as of Between The City of Baytown ( "OWNER ") and Pate Engineers, Inc. ( "ENGINEER ") ( "Effective Date ") OWNER lnrt, :ds to design roadway and drainage improvements for Hardin Road from Crosby — Cedar Bayou Road to Massey — Tompkins Road in Baytown, Texas ( "Project ") OWNER and ENG! "' E ER- in consideration of their mutual covenants as set: forth herein.:agrec as follows: -. • EMU A. Standard Form of Agrccment Between Owner and Engineer for Professional Services Page I of 12 TABLE OF CONTENTS Page • ARTICLE 1 - SERVICES OF ENGINEER ........................................ ............................... . 3 1.01 Scope .............................. .......... ............................... ................ ............................... ARTICLE 2 - OWNER'S RESPONSIBILITIES .............................................. ............................... ...... 3 2.01 General .. .......................................... ............................................... .......................... ................................. ARTICLE 3 - TIMES FOR RENDERING SERVICES ..................................................... ............................... . 3 3.01 General ............ ...... .............................. 3.02 Suspension ...... ............................... ................. ............................... ARTICLE 4 - PAYMENTS TO ENGINEER .................................... ............................... for-Scrvic:!s anal. Reimbursablc.Ezpenses of ENGINE . ': ............................. . 4.01 Methods of'.Payment 4.02 Other Provisions Concerning Payments .............................................. ............................... ARTICLE5 - OPINIONS OF COST ........................................................ ............................... 4 5 -01 Opinions of Probable Construction Cost ...................... ............................... . ................... ............................... 4 5.02 Designing to Construction Cost Limit ............................... ............................. ....................................... ........... 4 5.03 Opinions of Total Project Costs ................. ............................... ....................................... ............................... ARTICLE 6 - GENERAL CONSIDERATIONS ........................ .............................. . . .................... _... ............................... 4 4 6.01 Standards of Performance— ............................... ......................................... ... ................. ............................... 5 6.02 Authorized Project Representatives ...................... ............................... ............................. ............................... 5 6.03 Design without Construction Phase Services .......................... . ........................................... ............. I.............. 5 6.04 Use of Documents ......................................................................... ....:..................... . .... . ............................... .............................................................. 6.05 Insurance .............................................. ............................... 6 .............................. ............................. Termination ..... .................... .... ............................... ............................... 6.07 Controlling Law ................. ......................... ............................... ....... ............................... 6.08 Successors, Assigns, and Beneficiaries ............. ...... -- •••••••••....••..••... 0.09 Dispute: Resolution ..................... .......................................... ............................... ...... 7 G. 10 1-lazardcu5 Environmental Condit ion ................................ ................................... ....................................... 8 6.11 Allocation of Risks ....................................... ............................... ......._ .............................. ............................... 6.12 ? Joi3:: cs ...:....... ........... ........................................................ ....... . 6.13 Survival .............• - - -- .............. ............................... .................. ............................... 8 6.14 Severabili .................................. ............................... ................ ...............:............... ........................ 8 ............... ............................... 6.15 Waiver .............................. ........... ............................... - .. S 6.16 Headings .................... ...,... ............................... .......... ............................... ..................... ............................... 8 ARTICLE 7 - DEFINITIONS ....................... .......... ..................... . ....................................................... ............................... 8 7.01 Defined Terms ........ ............................... . ............................... ............................... _.......... ............................... ARTICLE 8 - EXHIBITS AND SPECIAL PROVISIONS ........................ .....................•... I l 8.01 Exhibits Included .................... —I .................. .. ................... . ....... .............. .. .................. .......... 8.02 Total Agreement .................................................................... ............................... • Standard Form of Agreement Between Owner and Engineer for Professional Services Page 2 of 12 • ARTICLE 1 - SERVICES OF ENGINEER 1.01 Scope A. ENGINEER shall provide the Basic and Additional Services set forth herein and in Exhibit A. B. Upon this Agreement becoming effective, ENGINEER is authorized to begin Basic Services as set forth in Exhibit A. C. If authorized by OWNER, ENGINEER shall furnish Resident Proiect Represimiative(s) with duties: responsibilities and lir;titations of authority, as set `:crth in Exhibit D. ARTICLE 2 - OWNER'S RESPONSIBILITIES 2.01 General A. OWNER shall have the responsibilities set forth herein and in Exhibit B. ARTICLE 3 - TIDIES FOR RENDERING SERVICES 3.01 General A. (Modified) ENGNEER's services and compensation under. this Agreement have been agreed to for the design of the Project. ENGENEER's, obligation. to render- services-. hereunder will b ^,.for whattwer period necessary for the :final ccn:pletion of said services. B. (Deleted). C, (Modified) For purposes- of this Agreement the term "day" means a calendar day of 24 hours. 3.02 Suspension A. (Modified) If OWNER fails within a reasonable period of' time to give written authorization to proceed with any phase of services after completion of the immediately preceding phase, or if OWNER delays ENGINEER's services, ENGINEER may, after giving seven days written notice to OWNER, suspend services under this Agreement. If during such seven -day period, OWNER gives written authorization to proceed or ENGINEER'S services are no longer delayed by OWNER, ENGINEER may not suspend services under this Agreement. B. (Modified) If ENGINEER's services are delayed or suspended in whole or in part by OWNER, ENGINEER shall be entitled to equitable adjustment of rates and amounts of compensation provided for elsewhere in this Agreement to reflect, reasonable costs incurred by ENGINEER in connection with, among other things, such delay or suspension and reactivation and the fact that the time for performance under this Agreement has been revised. ARTICLE 4 - PAYMENTS TO ENGINEER 4,01 Methods of . Pavment • for Services and Reinlbttrsabie Expenses of ENGINEER , For Basic Services. C;�vi�ER shall pay ENG1N'EER 2. for Basic Services performed or furnished under Exhibit A, Part 1, as set forth in Exhibit C. B. For Additional Services. OWNER shall pay ENGINEER for Additional Services performed or furnished under Exhibit A, Part 2, as set forth in Exhibit C. C. (ivfodified) For Reimbursable Expenses. In addition to payments provided for in paragraphs 4.01.A and 4.01.13, OWNER shall pay ENGINEER for Reimbursable Expenses incurred by ENGINEER and ENGINEER's Consultants as set forth in Exhibit C. However, all expenses associated with meals and lodging must be approved in .writing by OWNER prior to ENGINEER incurring any expense associated therewith-, otherwise, the parties hereto agree and understand that OWNER shall not be liable and ENGINEER shall not snake a claim against OWNER for any such: expenses. 4.02 Other Provisions.Concerning Payments A. Preparation o; Invoices. Invoices will- be prepared.. in accordance with ENGNEER's standard invoicing practices and will be submitted to OWNER by ENGINEER, unless otherwise agreed. ENGINEER shall supply detailed back -up information along with each invoice in order for the OWNER to effectively evaluate the fees and charges. The amount billed in each invoice will be calculated as set forth in Exhibit C. B. (Modified) Payment of Invoices, Invoices are due and payable within 30 days after the receipt of the invoice and the necessary backup information. If OWNER fails to snake any payment due ENGINEER for services and expenses within 30 days after receipt of ENGINEER's invoice and backup documentation therefor, the amounts due ENGINEER will be increased at the rate of 1.0% per month (or the maximum rate of interest permitted by law, if less) after the 30th day. ENGINEER may after giving seven days written Standard Form of Agreement Between Owner and Engineer for Professional Services Page 3 of 12 • notice to OWNER suspend services under this Agreement until ENG[NLER lmas been paid in full all amounts due for services, expenses, and other re that ENGINEER it is expressly understood and agreed charge any interest or penalty as set forth herein on any portion of an invoice that is disputed and withheld in accordance with paragraph 3.02 and that ENGINEER will not suspend services under the agreement on account of a disputed invoice or on account of monies withheld. All payments will be credited first to principal and then to interest. (, Disputed Ihtvoices: In the. went of a disputed• or contested invoice,.oniy that portion so- contested: may be withheld from pay, mmcni, and tile• undisputed portion, will l;c paid. D. Payments Upon Termination. In the event of any termination under section 6.06, ENGINEER will be entitled to invoice OWNER and will be paid in accordance with Exhibit C for all services performed or furnished and all Reimbursable Expenses incurred through the effective date of termination. 2. (Deleted) since ENGINEER has no control over the cost of labor, materials, equipment, or services furnished by others, or over the Contractor's methods of determining prices, or over competitive bidding or market conditions, ENGINEER cannot and does not guarantee that proposals, bids, or actual Construction Cost will not vary from opinions of probable Construction Cost prepared by ENGINEER. if OWNER wishes greater assurance as to probable Construction Cost, OWNER shall employ an independent cost estimator as Provided in Exhibit B. E. (Modified) Records of ENGINEER's Costs. Records of ENGNEER's costs pertinent to ENGINEER's INEER's kept compensation under this Agreement dices. accordance with generally accepted accountin g p ra Copies of such records will be made available to OWNER upon request at no cost to OWNER. r, legislativc Actions. In the, event of legislati-:c actions after the iffectivr' Sate of: th.e Agree nen. by any le.v� .. of government -. that impose takes,, fees, or costs: otm �Nh11NEEF:'s services:or other costs:.in. connection with this Project or compensation therefor, such new taxes, fees, or costs shall be invoiced to and paid by OWNER as a Reimbursable Expense to which a Factor of 1.0 shall be applied. Should such taxes, fees, or costs be imposed, they shall be in addition to ENGINEER's estimated total compensation. ARTICLE 5 - OPINIONS OF COST 5.01 Opinions of Probable Construction Cost 5,02 Designing,lo Construction Cost Limit A. If a Construction Cost limit is eslablished.between t��ti1ER. and ENG •KEEP.; such ConsLUCtion.Cost limit and a statement of ENCINEER's.rights and responsibilities with respect thereto will be specifically set forth in Exhibit F, "Construction Cost Limit," to this Agreement. (Exhibit F is not used). A. ENGINEER's opinions of probable Construction Cost provided for herein are to be made on the basis of • ENGINEER'S experience and qualifications and represent ENGINEER's best judgment as an ex per enced and qualified i professional generally familiar with the industry. However, 5.03 Opinions of Total Project Costs A. ENGINEER assumes no responsibility for the accuracy of opinions of Total Project Costs. ARTICLE 6 - GENERAL CONSIDERATIONS 6.01 Standards of Performance A. (Modified) The standard of care for all professional engineering and related services performed or furnished by ENGINEER under this Agreement will be the care and ,s ordinarily used by kill rimembei:s . of , GINEER's p practicing triter sirnilar:c.ireunmstances at.thf: saute tinme and in the same -locahry. a. i 1•lodified) ENi R,,EER shall be responsible for. the technical accuracy of its services and documents resulting therefrorn, and OWNER shall not be responsible for discovering deficiencies therein. ENGINEER shall correct such deficiencies without additional compensation except to the extent such action is directly attributable to deficiencies in OWNER- furnished information upon which ENGINEER is authorized to rely as provided in Section 6.0I I.E. C. ENGINEER shall perform or furnish professional engineering and related services in all phases of the Project to which this Agreement applies. ENGINEER shall serve as OWNER's prime professional for the Project. ENGINEER may employ such ENGMEER's Consultants as ENGINEER deems necessary to assist in the perfornmance or furnishing of the services. ENGINEER shall not be required to employ any ENGNEER's Consultant unacceptable to ENGINEER. Standard Form of Agreement Between Owner and Engineer for Professional Services Page 4 of 12 • D. ENGINEER and OWNER shall comply with applicable Laws or Regulations and OWNER- mandated standards. This Agreement is based on these requirements as of its Effective Date. Changes to these requirements after the Effective Date of this Agreement may be the basis for modifications to OWNER's responsibilities or to ENGINEER's scope of services, times of performance, or compensation. E. (iviodified) OWNER shall be responsible for, and ENGNEER may rely upon, the accuracy and completeness of all• requirements, programs, instn.r : ;ticsais, :.reports, data, ard.. other infornuition furnished by O«'NER to ENGINEER pursuani to this Agreement; unless expressly stinted or- comrnmucate4 otherwise by OWNER :. ENGINEER may use such requirements,.. reports, data, .: and.. information in performing or furnishing services under this Agreement. F. OWNER shall make decisions and carry out its other responsibilities in a timely manner and shall bear all costs incident thereto so as not to delay the services of ENGINEER. G. Prior to the commencement of the Construction Phase, OWNER shall notify ENGINEER of any variations from the language indicated in Exhibit E, "Notice of Acceptability of Work," or of any other notice or certification that ENGINEER will be requested to provide to OWNER or third parties in connection with the Project. OWNER and ENGINEER shall reach agreement on the terms of any such requested notice or certification, and OWNER shall authorize such Additional Services as are necessary to enable ENGINEER to provide the notices or certifications requested. H. (Modified) ENG.iNEER: shall not be required to sia .. . any documents, no .matter. ly whom requested, that would result in. ENGINEER's having to-certify, guarantee or'.varrunt the cxistence of conditions whose - existence ENGINEER cannot ascertain; provided, that °ENGINEER has- exercised.: due diligence and was not otherwise required to certify, guarantee or warrant the existence•of such conditions. 1. During the Construction Phase, ENGINEER shall not supervise, direct, or have control over Contractor's work, nor shall ENGINEER have authority over or responsibility for the means, methods, techniques, sequences, or procedures of constnrction selected by Contractor, for safety precautions and programs incident to the Contractor's work in progress, nor for any failure of Contractor to comply with Laws and Regulations applicable to Contractor's furnishing and performing the Work. contained in this paragraph shall be construed so as to absolve ENGINEER from liability for any such failure about which ENGINEER knew or should have known existed in the exercise of ENGINEER's services under this Agreement. K. (Modified) ENGINEER shall not be responsible for the acts or omissions of any Contractor(s), subcontractor or supplier, or of any of the Contractor's agents or employees or any other persons (except ENGINEER's own employees and its consultants for which it is legally liable) at the Site or otherwise furnishing or performing any -of the Contractor's work; or. for any decision made on interpretations or clarifications of the Contract. Documents given by OVYINER without consultation and advice of ENGINEER. L. (Modified) The Gen-,ral. Conditions - for:- any construction contract documents prepared hereunder are to be the Standard Form of Agreement between Owner and Contractor and as approved by OWNER in writing. 6.02 Authorized Project Representatives A. Contemporaneous with the execution of this Agreement, ENGINEER and OWNER shall designate specific individuals to act as ENGINEER's and OWNER's representatives with respect to the services to be performed or furnished by ENGINEER and responsibilities of OWNER under this Agreement. Such individuals shall have authority to transmit instructions, receive information, and render decisions relative to the Project on behalf of each respective party. 6.03 Design without Construction Phase Services A. Should OWNER provide Constriction Phase services. with either OWNER's representatives or a third.parry; ENGINEER's Basic Services under this Agreeniert.will be considered-. to be. completed - ntpon:completion.rf. die; Final Design Phase or Bidding or Negotiating Phase as outlined in Exhibit A. B. It is understood and agreed that if ENGINEER's Basic Services under this Agreement do not include Project observation, or review of the Contractor's performance, or any other Construction Phase services, and that such services will be provided by OWNER, then OWNER assumes all responsibility for interpretation of the Contract Documents and for construction observation or review and waives any claims against the ENGNEER that may be in any way connected tl'iereto. J. (Modified) ENGINEER neither guarantees the 6.04 Use of Documents • performance of any Contractor nor assumes responsibility for A. (Modified) Upon on execution of this Agreement, the any Contractor's failure to furnish and perform the Work in accordance with the Contract Documents. However, nothing ENGINEER grants to the OWNER an ownership interest in Standard Form of Agreement Between Owner and Engineer for Professional Services Page 5 of 12 • the Instruments of Service. The ENGINEER shall obtain similar interests from the OWNER and the ENGINEER'S consultants consistent with this Agreement. Within seven days of any termination or expiration of this Agreement, the ENGINEER shall be required to tender to OWNER all Instruments of Service; provided OWNER has paid all monies, excluding any disputed amount, due and owing to ENGINEER in accordance with this Agreement. With such ownership interest, it is expressly understood by the parties hereto that the OWNER may use the Instruments of Service for any purposes which the OWNER sees fit, including, but not limited to, subsequent construction, reconstruction,. alteration, an(Uor. repairs of the Project. Asa condition to the OWNER's use of the..lnsmirnents of Service, the OWNER hereby expressly agrees to remove the ENGINEER's name and all references to the ENGNNEER, and; its consultarts:from. the Documents. The OWNER hereby releases any and all claims which the OWNER could make arising out of or in connection with any reuse of the documents by the OWNER. This release of claims for the matters covered in this Paragraph 6.04.A shall be for the benefit of the ENGINEER, its officers, and employees and sub - consultants, as well as their successors and assigns. B. (Modified) Copies of OWNER- furnished data that may be relied upon by ENGINEER are limited to the printed copies that are delivered to ENGINEER pursuant to Exhibit B unless otherwise expressly stated or communicated by OWNER. Files in electronic media format of text, data, graphics, or of other types that are furnished by OWNER to ENGINEER are only for convenience of ENGINEER. Any conclusion or information obtained or derived from such electronic files will be at the user's sole risk. C. Comes of Ducanneots.. that may be relied upon. by OWNER are limitcd to the pr?r?ted copies (also known as liar, copies) that.are.sigmcd or- sealed by the ENGNEEP1.Fiies in electronic media format of text, data, graphics, or of-other types that are furnished by ENGINEER to OWNER are only for convenience of OWNER. Any conclusion or information obtained or derived from such electronic files will be at the user's sole risk. D. Because data stored in electronic media format can deteriorate or be modified inadvertently or otherwise without authorization of the data's creator, the party receiving electronic files agrees that it will perform acceptance tests or procedures within 60 days, after which the receiving parry shall be deemed to have accepted the data thus transferred. The party delivering the electronic files will correct any errors detected within the 60 -day acceptance period. ENGINEER shall not be responsible to maintain documents stored in electronic media format after acceptance by OWNER. E. When transferring documents in electronic media format, ENGINEER makes no representations as to long -tear compatibility, usability, or readability of documents resulting from the use of software application packages, operating systems, or computer hardware differing from those used by ENGINEER at the beginning of this Project. F. (Modified) Any use of the Documents on any extension of the Project or on any other project shall be at OWNER's sole risk and OWNER hereby releases ENGINEER from any liability associated solely with the reuse of the Documents. G. If there is a. discrepancy between the electronic -files and the hard.copies, the hard cop.ie3 govern. H. Any verification or adaptation of the Documents for extensions of the Project or for any other project will entitle ENGINEER to further compensation at rates to be agreed upon by OWNER and ENGINEER. 6.05 Insurance A. ENGINEER shall procure and maintain insurance as set forth in Exhibit G, "Insurance." B. Not used. C. Not used. D. Not used. E. Not used. F. ?.t any time, OWNER may request that ENGINEER, at Ow'�IER's sole expense, provide additional insurance coverage., increased limits; or revised deductibles that are more.; protective than those specified .in. Exhibit -G. If "so requested by OWNER, with the concurrence of ENGINEER, and if commercially available, ENGINEER shall obtain and shall require ENGINEER's Consultants to obtain such additional insurance coverage, different limits, or revised deductibles for such periods of time as requested by OWNER, and Exhibit G will be supplemented to incorporate these requirements. 6.06 Termination A. (Modified) The obligations hereunder may be terminated: 1. For cause, a. (Modified) By either parry upon 30 days written notice in the event of failure by the other Standard Morin of Agreement Between Owner and Engineer for Professional Services Fac 6 of 12 • • party to perform in accordance with the terms hereof through no fault of the terminating party; or b. By ENGINEER upon seven days written notice if ENGINEER is being requested by OWNER to furnish or perform services contrary to ENGINEER's responsibility as a licensed professional. c- Nohvithstanding the foregoing, this Agreement will not terminate as a result of such substantial failure if the party receiving such notice begins, within seven days of receipt of such notice, to correct its failure to perform and.pruceeds. diligently to cure such failure within. no more than 10 days of receipt thereof, provided, however, that ifatid to thc. extent such substantial failure cannot be reasonably cured within such 30 day period, and if such party has diligently attempted to cure the same and thereafter continues diligently to cure the same then the cure period provided for herein shall extend up to, but in no case more than 60 days after the date of receipt of the notice. 2. For convenience by OWNER effective upon the receipt of notice by ENGINEER. B. Not used. 6.07 Controlling Law A. This Agreement is to be governed by the law of the state in which the Project is located. 6,08 Successors, Assigns, and Beneficiaries A. ()WNER and El�`GfNEER: each: is: hereby:hoar :d and:. the partners, successors, executurs, •admirtistrators and legai representatives of OWNER and ENGINEER (and to the extent permitted by paragraph 6.08.E the assigns of OWNER and ENGINEER) are hereby bound to the other party to this Agreement and to the partners, successors, executors, administrators and legal representatives (and said assigns) of such other party, ih respect of all covenants, agreements and obligations of this Agreement. B. Neither OWNER nor ENGINEER may assign, sublet, or transfer any rights tinder or interest (including, but without limitation, moneys that are due or may become due) in this Agreement without the written consent of the other, except to the extent that any assignment, subletting, or transfer is mandated or restricted by law. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement. C. Unless expressly provided otherwise in this Agreement: 1. Nothing in this Agreement shall be construed to create, impose, or give rise to any duty owed by OWNER or ENGINEER to any Contractor, Contractor's subcontractor, supplier, other individual or entity, or to any surety for or employee of any of them. 2. All duties and responsibilities undertaken pursuant to this Agreement will be for the sole and - e:cclusive benefit of OWNER. and ENGINEER and not for the benefit of any other..party. The OWNER- agrees that. the substance - of the: provisions of this paragraph 6.08.0 shall appear it-the Contract Documents: 6.09 Not Used. 6.10 Hazardous Environmental Condition A, OWNER represents to Engineer that to the best of its knowledge a Hazardous Environmental Condition does not exist. 13. ( \Rodified) OWNER has disclosed to the best of its knowledge and belief to ENGINEER the existence of all Asbestos, PCB's, Petroleum, Hazardous Waste, or Radioactive Material located at or near the . Site, including type, quantity and location. C. (Modified) if a Hazardous Environmental Condition is encountered or alleged, ENGINEER shall have t1hi _ obligation to roil f} ! �x,N �R. on or before the next casiness Clay of the same. I ?. It is acknowledged — by both parties that ENGNEER's scope of services does not inclerle..any services. related to a Hazardous Environmental Condition. In the event ENGINEER or any other party encounters a Hazardous Environmental Condition, ENGNEER may, at its option and without liability for consequential or any other damages, suspend performance of services on the portion of the Project affected thereby until OWNER: (i) retains appropriate specialist consultant(s) or contractor(s) to identify and, as appropriate, abate, remediate, or remove the Hazardous Environmental Condition; and (ii) warrants that the Site is in full compliance with applicable Laws and Regulations. E. OWNER acknowledges that ENGINEER is performing professional services for OWNER and that ENGINEER is not and shall not be required to become an "arranger," "operator," "generator," or "transporter" of hazardous substances, as defined in the Comprehensive Environmental Response, Compensation, and Liability Act of Standard Form of Agreement Between Owner and Engineer for Professional Services Page 7 of 12 • • 1990 (CERCLA), which are or may be encountered at or near the Site in connection with ENGINEER's activities under this Agreement. F. If ENGINEER's services tinder this Agreement cannot be performed because of a Hazardous Environmental Condition, the existence of the condition shall justify ENGINEER's terminating this Agreement for cause on 30 days notice. 6.11 Allocation of Risks A. (Modified) Indemnification. See Exhibit K. 6.12 Notices . A. (Modified) Any notice required under this Agreement will be in writing, addressed to the appropriate party at its address on the signature page and given personally, or by registered or certified mail postage prepaid, or by a commercial courier service. Additionally, notices may be given via facsimile or by electronic mail if such notice is also given personally, or by registered or certified mail or by a commercial courier service. All notices shall be effective upon the date of receipt. 6.13 Survival A. (Modified) All express representations, indemnifications, and limitations of liability included in this Agreement will survive its completion or termination for any reason. 6.14 Severab'tiity A. Any provision or. part of .the:Agrecment:held:to; be void or unenforceable tLrder. any Laws :or Regulations -shall Fie' deemed stricken, and all remaining provisions shall continue to be valid and binding upon OWNER and ENGNEER, who agree that the Agreement shall be reformed to replace such stricken provision or part thereof with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision. 6.15 Waiver A. Non- enforcement of any provision by either parry shall not constitute a waiver of that provision, nor shall it affect the enforceability of that provision or of the remainder of this Agreement. 6.16 Headings A. The headings used in this Agreement are for general reference only and do not have special significance. ARTICLE 7 - DEFINITIONS 7.01 Defined Terms A. Wherever used in this Agreement (including the Exhibits hereto) and printed with initial or all capital letters, the terms listed below have the meanings indicated, which are applicable to both the singular and plural thereof: .. 1. Addenda--Written or graphic instruments issued prior to. rite opening of Bids which clarify, correct, or change the Bidding Documents. 2. Addirional Services- -The services to be performed for or famished to OWNER by ENGINEER in accordance with Exhibit A, Part 2 of this Agreement. 3. Agreement- -This "Standard Form of Agreement between OWNER and ENGINEER for Professional Services," including those Exhibits listed in Article 8 hereof. 4. Application for Payment - -The form acceptable to ENGNEER which is to be used by Contractor in requestutg progress or final payments for the completion of its Work and which is to be accompanied by such supporting documentation as is required by the Contract Documents. 5. Asbestv.-- -Amy material that contaitts:more thav one percent asbestos and is thable rr is releasing asbestos fibers into the air above cunTent -,CtiCn levels established by the United States Occupational.. Safety and. Health Adm.inistTation. 6. Basic Services- -The services to be performed for or furnished to OWNER by ENGINEER in accordance with Exhibit A, Part 1, of this Agreement. 7. Bid- -The offer or proposal of the bidder submitted on the prescribed form setting forth the prices for the Work to be performed. 8. Bidding Documents- -The advertisement or invitation to Bid, instructions to bidders, the Bid form and attachments, the Bid bond, if any, the proposed Contract Documents, and all Addenda, if any. 9. Change Order - -A document recommended by ENGNEER, which is signed by Contractor and OWNER to authorize an addition, deletion or revision in the Work, Standard Form of Agreement Between Owner and Engineer for .Professional Services Page 8of12 • or an adjustment in the Contract Price or the Contract Final Completion, and (ii) complete the Work so that it is Times, issued on or after the Effective Date of the ready for final payment as evidenced by ENGINEER's Construction Agreement. written recommendation of final payment. 10. Construction Agreement - -The written instrument which is evidence of the agreement, contained in the Contract Documents, between OWNER and Contractor covering the Work. 11. Construction Contact- -The entire and integrated written agreement between the OWNER and Contractor concerning the. %-Vork-. 12. Cornstruction Cost - -Thc. cost to O',VNER of thL�se portions of the entire Project designed )r.specilicd by ENGINEER. Construction: Cost does . not..inclad_. costs of services of ENGINEER or other design professionals and consultants, cost of land, rights -of -way, or compensation for damages to properties, or OWNER's costs for legal, accounting, insurance counseling or auditing services, or interest and financing charges incurred in connection with the Project, or the cost of other services to be provided by others to OWNER pursuant to Exhibit B of this Agreement. Construction Cost is one of the items comprising Total Project Costs. 13. (Modified) Contract Documents -- Documents that establish the rights and obligations of the parties engaged in construction and include the Construction Agreement between OWNER and Contractor and all documents referenced therein, Addenda (which pertain to the Contract Documents), Contractor's Bid (including documentation accompanying the Bid and any post -Bid documentation submitted prior"to the notice of. award) whe- att-tclied . as an exhibit to- the Censt7,action Agreement, tl,e notice to proceed, the bands, approp:iate certifications, insurance docuinenis the General Conditions; the Suppi.�mentary Conditions, -- ;l1°• Specifications and the Drawings as the same are more specifically identified in the Construction Agreement, together with all Written Amendments, Change Orders, Work Change Directives, Field Orders, and ENGINIEER's written interpretations and clarifications issued on or after the Effective Date of the Construction Agreement. Approved Shop Drawings and the reports and drawings of subsurface and physical conditions are not Contract Documents. 14. Contract Price- -The moneys payable by OWNER to Contractor for completion of the Work in accordance with the Contract Documents and as stated in the Construction Agreement. 15. Contract Times - -The numbers of days or the dates stated in the Constnction Agreement to: (i) achieve 16. Conrractor--An individual or entity with whom OWNER enters into a Construction Agreement. 17. Correction Period- -The time after Final Completion during which Contractor must correct, at no cost to OWNER, any Defective Work, nominally one year after the date of Final Completion or such longer period of time: as may be prescribed by Laws or Regulations .or by -the terns of :any applicable. special guarantee. or soeriiic provision of the Cori hact Documents. 13. Defective.- -An atljectivz .whici?;..when modifying the word Work, refers to Work that is unsatisfactory, faulty, or deficient, in that it does not conform to the Contract Documents, or does not meet the requirements of any inspection, reference standard, test, or approval referred to in the Contract Documents, or has been damaged prior to ENGINEER's recommendation of final payment. 19. Doctanents- -Data, reports, Drawings, Specifications, Record Drawings, and other deliverables, whether in printed or electronic media format, provided or furnished in appropriate phases by ENGNEER to OWNER pursuant to this Agreement. 20. Drawings- -Tliat part of the Contract Documents prepared or approved by ENGNEER which graphically shows the scope, extent, and character of the Work to be peri i-med ---by Contractor. Shop Drawings are not Dra,.Angs as so defimA .-. 21. Effective lute of tine Consmiction-.4 reement -- The..d:ite indicated. in the Construction: A`reement on which it becomes effective, but if no such date is indicated, it means the date on which the Construction Agreement is signed and delivered by the last of the two parties to sign and deliver. 22. Effective Date of the Agreement- -The date indicated in this Agreement on which it becomes effective, but if no such date is indicated, it means the date on which the Agreement is signed and delivered by the last of the two parties to sign and deliver. 23. ENGINEER's Consultants - -Individuals or entities having a contract with ENGNEER to furnish services with respect to this Project as ENGNEER's independent professional associates, consultants, subcontractors, or vendors. The term ENGINEER includes ENGINEER's Consultants. Standard Form of Agreement Between Owner and Engineer for Professional Services Page 9 of 12 24. Field Order - -A written order issued by ENGINEER which directs minor changes in the Work but which does not involve a change in the Contract Price or the Contract Times. 25, Final Completion shall mean that all work has been completed, all final punch list items have been inspected and satisfactorily completed, all payments to subcontractors have been made, all documentation and warranties have been submitted, all closeout documents have been executed and approved by the OWNER, and the Project has been ;finally accepted by the ONVNER. 26, General Conditions -That part of the Contract Documents which sets forth terms, conditions, and procedures that govern the Work to be performed or furnished by Contractor with respect to the Project. 27. Hazardous Environmental Condition- -The presence at the Site of Asbestos, PCB's, Petroleum, Hazardous Waste, or Radioactive Materials in such quantities or circumstances that may present a substantial danger to persons or property exposed thereto in connection with the Work. 28. Hazardous lyaste- -The term Hazardous Waste shall have the meaning provided in'Section 1004 of the Solid Waste Disposal Act (42 USC Section 6903) as amettdedfrom:t ne to time: 29.' Lass and Rc,; rulations; Laivs or Regulations— Any and all applicable Aaws, ntles;. re-plations, ordinances, codes; standards;-and orders:of any-and all governmental bodies, agencies, authorities, and courts having jurisdiction. 30. PCB's -- Polychlorinated biphenyls. 31. Petroleum-- Petroleunm, including crude oil or any fraction thereof which is liquid at standard conditions of temperature and pressure (60 degrees Fahrenheit and 14.7 pounds per square inch absolute), such as oil, petroleum, fuel oil, oil sludge, oil refuse, gasoline, kerosene, and oil mixed with other non - Hazardous Waste and crude oils. 32. Radioactive rblaterials -- Source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954 (42 USC Section 2011 et seq.) as amended from time to time. 33. Record Drawings- -The Drawings as issued for construction on which the ENGINEER, upon completion of the Work, has shown changes due to Addenda or Change Orders and other information which ENGINEER considers significant based on record documents furnished by Contractor to ENGINEER and which were annotated by Contractor to show changes made during construction. 34. Reimbursable Expenses- -The expenses incurred directly: by ENGNEER in connection with the performing or furnishing of Basic and Additional S,;n,ices for the Project for which OWNER shall pay ENG[NF.ER as indicated in Exhibit -C. 35. Resident Project Representative- -The authorized representative of ENGINEER, if any, assigned to assist ENGINEER at the Site during the Construction Phase. The Resident Project Representative will be ENGNEER's agent or employee and under ENGINEER's supervision. As used herein, the term Resident Project Representative includes any assistants of Resident Project Representative agreed to by OWNER. The duties and responsibilities of the Resident Project Representative are as set forth in Exhibit D. 36. Samples -- Physical examples of materials, equipment, or workmanship that are representative of some portion of the Work and which, establish the standards by which such portion of the Work will be judged. ?7: Shop Drawings= -All: drawings, . . ingrnms;- illast-rations, schedules, and other data or infurnmation which are spec:tically prepared.cr assembled by or for Compactor and suhtnittad- by Contractor. to ENGINEER - t0 illustrate some portion of she- Work.. 38. Site- -Lands or areas indicated in the Contract Documents as being famished by OWNER upon which the Work is to be performed, rights -of -way and easements for access thereto, and such other lands famished by OWNER which are designated for use of Contractor. 39. Specifications- -That part of the Contract Documents consisting of written technical descriptions of materials, equipment, systems, standards, and workmanship as applied to the Work and certain administrative details applicable thereto. 40. Substantial Completion- -The time at which the Work (or a specified part thereof) has progressed to the point where, in the opinion of ENGINEER, the Work (or a specified part thereof) is sufficiently complete, in. accordance with the Standard Fonn of Agreement Between Owner and Engineer for Professional Services Page 10 of 12 • Contract Documents, so that the Work (or a specified part thereof) can be utilized for the purposes for which it is intended. The terms "substantially complete" and "substantially completed" as applied to all or part of the Work refer to Substantial Completion thereof. 4 L Supplementary Conditions- -That part of the Contract Documents which amends or supplements the General Conditions. 42. (Modified) Total Project Costs- -The sum of the Construction. Cost; allowances for contingencies, the total costs of services of ENGINEER or other design professionals and consultants, cost of land, rights -of -way, compensation for damages to properties, OWNER's costs for Iel ai, accounting,' insurance.. counseling or auditing services, mterest and financing charges incurred in connection with the Project, and the cost of other services to be provided by others to OWNER pursuant to Exhibit B of this Agreement. 43. 14/ork- -The entire completed construction or the various separately identifiable parts thereof required to be provided under the Contract Documents with respect to this Project. Work includes and is the result of performing or furnishing labor, services, and documentation necessary to produce such construction and furnishing, installing, and incorporating all materials and all equipment into such construction, all as required by the Contract Documents. 44. Work Change Directive - -A written directive to Contractor issued on or after the Effective Date of the Construction Agreement and signed by OWNER upon recommendation of the ENGINEER, ordering an addition, deletion, or. revision in the Wo"d, or responding to differing er. . unforeseen subsurface or physical- cordition_g..under :which thc- \Vork is to be performed or to emergencies. A Work. Change Directive will not- change the C6nu•act: Price: or the Contract: Times but -is evidence that the paries...expect. that" the change% directed or documented by a Work Change Directive will be incorporated in a subsequently issued Change Order following negotiations by the parties as to its effect, if any, on the Contract Price or Contract Times. 43. Written Amendnent - -A written amendment of the Contract Documents signed by OWNER and Contractor on or after the Effective Date of the Construction Agreement and normally dealing with the non - engineering or non - technical rather than strictly construction - related aspects of the Contract Documents. ARTICLE 8 - EXHIBITS AND SPECIAL PROVISIONS 8.01 Exhibits Included A. E;dubit A, "ENGINEER's Services," consisting of six (6) pages. B. Exhibit B, "OWNER's Responsibilities," consisting of two (2) pages. C.. Exinibit C,. "Payments to Engineer.: for Services and Reimbursable Expenses;" consisting of nvo (2) pages. . D. &dtibit D,: "Duties, Responsibilities and -Limitations of Authority of Resident Project Representative, " is not used. E. Exhibit E, "Notice of Acceptability of Work," consisting of two (2) pages. F. Exhibit F, "Construction Cost Limit," is not used. G. Exhibit G, "Insurance," consisting of two (2) pages. H. Exhibit H, "Dispute Resolution," is not used. I. Exhibit I, "Allocation of Risks," is not used. J. Exhibit J, "Special Provisions" is not used. K. (Added) Exhibit K, "Indemnification" consisting of hvo (2) pages. L. (Added) Exhibit. L, "Scope of Work" consisting of (21 ) pages.. 8,02.1 Total -. Agreement . A. This Agreement (consisting of pages 1 to 12 inclusive, - together with the Exhibits identified above) constitutes the entire agreement between OWNER and ENGINEER and supersedes all prior written or oral understandings. This Agreement may only be amended, supplemented, modified, or canceled by a duly executed written instrument. This Agreement along with the exhibits shall be read and construed as the same Agreement. Standard Form of Agreement Between Owner and Engineer for Professional Services Page 11 of 12 0 C7 IN WITNESS WHEREOF, the parties hereto have executed this Agreement, the Effective Date of which is indicated on page 1. OWNER: CITY OF BAYTOWN Gary Jackson Title: City Manager Date Signed: Address for giving notices: P.O. BOX 424 BAYTOWN, TEXAS 77422 -0424 Designated Representative (paragraph 6.02.A): W.R. (Bill) Pedersen, P.E. Title: City Engineer Phone Number: (281) 420 -6549 Facsimile Number: (281) 420 -6586 E -Mail Address: wrpedersen @bayto-,vn.org ENGN PATE ENGINEERS, NC. Printed ame David A. Hamilton, P.E. Title Vice President Date Signed May 16, 2003 Address for giving notices: 13333 Northwest Freeway, Suite 300 Houston, Texas 77040 Designated Representative (paragraph 6.02.A): Kenneth W. Korb, P.E. Title: Senior Project Manager Phone Number: 713462-3178 Facsimile Number: 713 -462 -1631 E -Mail Address: kkorb @pateeng.com Standard Form of Agreement Between Owner and Engineer for Professional Services Page 12 of 12 This is EXHIBIT A, consisting of 6 pages, referred to in and part of the Agreement between OWNER and ENGINEER for Professional Services dated Initial: OWNER ENGINEER ENGINEER's Services Article 1 of; the.. Agreement is,, amended and supplemented. to. include the following agreement of the parties: ENGr.rlEER shall provide Basic and Additional Services as set forth below: PART i -- BASIC SERVICES (Modified) A LOl Preliminary Design Phase A. ENGINEER shall: 1. Consult with OWNER to define and clarify OWNER's requirements for the Project and available data. 2. Advise OWNER as to the necessity of OWNER's providing data or services of the types described in Exhibit B which are not part of ENGINEER's Basic Services, and assist OWNER in obtaining such data and services. 3. (Modified) Identify, consult with, and analyze requirements of governmental authorities having jurisdiction to approve the portions of the Project designed or specified by ENGINEER, including but not limited to mitigating measures identified in the environmental assessment (if any). 4. identify and evaluate potential solutions available to OWNER; and, after consultations with OWNER, recommend to OWNER those solutions which in ENGINEER's judgment meet OWNER's requirements for the Project. 5. (M�ciificd) .4ttencl one =(!) revietiv meeting - -with OWNER:.. (Modified) Prepare a °preliminary eng re;:iing letter. report. and 50% Des;ga�.Doctunents (the, "50% Submittal ") which. will :as -approp i:itc,•ccntzrin.schematic layouts,- sketches; schedule: of events, and conceptual design criteria with appropriate exhibits to indicate the agreed -to requirements, considerations involved, and those alternate solutions available to OWNER which ENGINEER recommends. This Report will be accompanied by ENGINEER's opinion of Total Project Costs for each solution which is so recommended for the Project with each component separately itemized, including the following, which will be separately itemized: opinion of probable Construction Cost, allowances for contingencies and for the estimated total costs of design, professional, and related services provided by ENGINEER and, on the basis of information fumished by OWNER, allowances for other items and services included within the definition of Total Project Costs. Furnish three (3) review copies of the 50% Submittal to OWNER within fifty -three (53) days of authorization to begin services and review it with OWNER. 8. Revise the 50% Submittal in response to OWNER's and other parties' comments, as appropriate, and fumish five (5) final copies of the revised Report to the OWNER within seven (7) days after completion of reviewing it with OWNER. B. (Modified) ENGINEER's services under the Preliminary Design Phase will be considered complete on the date when the finai copies of the revised Report have been delivered to and accepted by OWNER. Page l of 6 pages (Exhibit A — Engineer's Services) aA 1 A2 Final Design Phase • A. After acceptance by OWNER of the Preliminary Design Phase documents and revised opinion of probable Construction Cost as determined in the Preliminary Design Phase, but subject to any OWNER- directed modifications or changes in the scope, extent, character, or design requirements of or for the Project, and upon written authorization from OWNER, ENGINEER shall: 1. (Modified) On the basis of the above acceptance, direction, and authorization, prepare final Drawings indicating the scope, extent, and character of the Work to be performed and furnished by Contractor. Specifications will be prepared, where appropriate ,-.in..commfornianec: with the 16- division format of.the. Construction Specifications. Institute or other. format agreed: to in writing by OWNER and ENGINEER:: 2. Provide tecluucal criteria, written descriptions,-.and design data for.OWNER's use. in filing applicarons for-- penTdts from. or approvals:of governmentai authorities having jurisdiction to review or approve the -finat- design of the Project and assist OWNER in consultations with appropriate authorities. 3. Advise OWNER of any adjustments to the opinion of probable Construction Cost and any adjustments to Total Project Costs known to ENGINEER, itemized as provided in paragraph A 1.0I.A.5. 4. Perform or provide the following additional final Design Phase tasks or deliverables: * 90% Submittal — 30 Calendar Days from acceptance of 50% Submittal * 100% Submittal — 14 Calendar Days from acceptance of 90% Submittal 5. Prepare and famish Bidding Documents for review and approval by OWNER, its legal counsel, and other advisors, as appropriate, and assist OWNER in the preparation of other related documents. 6. Submit five (5) final copies of the Bidding Documents and a revised opinion of probable Construction Cost to OWNER within forty-four (44) days after authorization to proceed with this phase. 7. (Added) Prepare additional line items in the Bid Tabulations, assuming the project documentation, including plans and specifications, were originally prepared to reflect these items, as reasonably requested by OWNER; so.long.as.this /these r4,—quest(s) ;s-made prior to the preparation of the final bid:doemnents:: B. 1n. the event: that the Work designed::or specified by ENGINEER is to. he performed or fiimished: tinder more than one prince contract,, or if:.F.NG[NEER's. services. are to be:separately sequenced with the .work of one or more prime. Conmictors (such as in mhe case of last -tra: king},:. CWNER and- ENGINEER shall, prior to commencement of the Final Design Phase, develop a schedule for performance of ENGTNEER's services during the Final Design, Bidding or Negotiating, Construction, and Post - Construction Phases in order to sequence and coordinate properly such services as are applicable to the work under such separate prime contracts. This schedule is to be prepared and included in or become an amendment to Exhibit A whether or not the work under such contracts is to proceed concurrently. C. The number of prime contracts for Work designed or specified by ENGINEER upon which the ENGNEER's compensation has been established under this Agreement is 1 D. (Modified) ENGINEER's services under the Final Design Phase will be considered complete on the date when the submittals required by paragraph A 1.03.A.6 have been delivered to and accepted by OWNER. Page 2 of 6 pages (Exhibit A — Engineer's Services) -A 1.03 Bidding or Negotiating Phase A. After acceptance by OWNER of the Bidding Documents and the most recent opinion of probable Construction Cost as determined in the Final Design Phase, and upon written authorization by OWNER to proceed, ENGINEER shall: 1. (Modified) Provide 15 sets of plans and specifications (Bid Documents) to OWNER. 2. Issue Addenda as appropriate to clarify, correct, or change the Bidding Documents. 3. Consult with OWNER as to the acceptability of subcontractors, suppliers, and other individuals and entities proposed by Contractor for those por ions of the WWork as: to.which.such. acceptability is required . by the Bidding Documents. 4. Perform or provide t_he. foliowirg additional .uidding or N6 otia6rig.Phase tasks or deliverables:. ----None- 5. (Modified) Attend the Mandatory Pre -Bid Conference, prepare Bid tabulation sheets, assemble contract documents, assist OWNER in both evaluating Bids or proposals and awarding contracts for the Work. 6. (Deleted) 7. (Deleted) B. (Modified) The Bidding or Negotiating Phase will be considered complete upon commencement of the Construction Phase. A1.04• Construction Phase A. Upon successful completion of the Bidding and :Neg_ otiating .Phase; .ancl upon v,:itten •authoriiaJun- from .. : ONVC4ER, ENGINE~ -R shall: I. (Deleted) 2. (Deleted) 3. Pre- Consinretion Conference. Participate in a Pre - Construction Conference prior to commencement of work at the Site. 4. Baselines and Benchmarks. As appropriate, establish baselines and benchmarks for locating the Work which in ENGINEER's judgment are necessary to enable Contractor to proceed. 5. Visits to Site and Observation of Construction. In connection with observations of Contractor's work in progress while it is in progress: a. (Deleted) b. (Deleted) • 6. (Deleted) Page 3 of 6 pages (Exhibit A — Engineer's Services) 7. (Deleted) • 8. Change Orders and Nark Change Directives. Recommend Change Orders and Work Change Directives to OWNER, as appropriate, and prepare Change Orders and Work Change Directives as required. 9. Shop Drawings and Samples. Review and approve or take other appropriate action in respect to Shop Drawings and Samples and other data which Contractor is required to submit, but only for conformance with the information given in the Contract Documents and compatibility with the design concept of the completed Project as a functioning whole as indicated in the Contract Documents. Such reviews and approvals or other action will not extend 'to means, methods, techniques, sequences or procedures of construction or to safety precautions and programs incident thereto. ENGNEER has an obligation to meet any Contractor's submittal schedule that has' earlier been acceptable to ENGNEER. . 10. Suh.ctirerres crnri "�r egerul. " Evaluate and detemtine the acceptability of substitute or ".or-equal" materials and equipment proposed by Contractor; but.subject to the provisions of paragraph A2.01 of this Exhibit A. 11. (Deleted) 12. ( Modifed) Disagreements between 01,WER and Contractor. Render formal written decisions on all claims of OWNER and Contractor relating to the acceptability of Contractor's work or the interpretation of the requirements of the Contract Documents pertaining to the execution and progress of Contractor's work. In rendering such decisions, ENGNEER shall be fair and not show partiality to OWNER or Contractor. 13. (Modified) Applications for Payment. Based on ENGNEER's observations as an experienced and qualified design professional review Applications for Payment and accompanying supporting documentation. a. (Deleted) b. (Deleted) 14. Contractor's Completion Documents. a. (Deleted)-- b. (Deleted) c. (Deleted) d. (Added) Preparing and furnishing to OWNER Record Drawings on mylar showing appropriate record information based on Project annotated record documents received from Contractor. 15. (Deleted) 16. Additional Tasks. Perform or provide the following additional Construction Phase tasks or deliverables: _ l Engineer will review application for payment for math accuracy only. 2.En ineer shall attend final walkthrou h with Owner and Contractor 17. (Deleted) ® B. Duration of Constnuction Phase. The Construction Phase will commence with the execution of the first Construction Agreement for the Project or any part thereof and will terminate upon final payment to Page 4 of 6 pages (Exhibit A — Engineer's Services) Contractors. If the Project involves more than one prime contract as indicated in paragraph A1.02.C, • Construction Phase services may be rendered at different times in respect to the separate contracts. C. Limitation of Responsibilities. '.ENGINEER shall not be responsible for the acts or omissions of any Contractor, or of any of its subcontractors, suppliers, or of any other individual or entity perfortrting or furnishing any of the Work. ENGINEER shall not be responsible for failure of any Contractor to perform or furnish the Work in accordance with the Contract Documents. A1.05 Post - Construction Phase (Not Applicable) A. (Deleted) B. (Delet :,d) PART 2 -- ADDITIONAL SERVICES A2,01 Additional Services Requiring OPYNER's Authorization in Advance A. If authorized in writing by OWNER, ENGINEER shall furnish or obtain from others Additional Services of the types listed below. These services will be paid for by OWNER as indicated in Article 4 of the Agreement. (Modified) Preparation of applications and supporting documents (in addition to those furnished under Basic Services) for private or governmental grants, loans or advances in connection with the Project; preparation or review of environmental assessments and impact statements; review and evaluation of the effects on the design requirements for the Project of any such statements and documents prepared by others; assistance in obtaining approvals of authorities having jurisdiction over the anticipated environmental impact of the Project; and assistance in obtaining on behalf of the OWNER permits not otherwise included with the scope of Basic Services from all governmental authorities having jurisdiction to approve all phases of the PROJECT designed or specified by ENGINEER. 2. Services to make measured drawings of or to investigate existing conditions or facilities, or to verify the accuracy of drawings or other information furnished by OWNER. 3. (Modified) Services: resulting from significar!t changes in the scope; extent,. or..character of the portions of . the Project designed or specified by ENGINEER or its design: requu -ements!incladLie,:btit.r;ot: limited to, changes-:in size,.: OWNER's -schedule,-..or character of construction; and revising previously accepted studies; repor -,s, Drawings,. Specifications,: or.. Conrracz :Document: ;. when such: revisions are required by changes in .Laws and Regulations eracted:suhsequenf to the Effective Date of this Agreenent. 4. (Modified) Sery ices resulting from OWNER's request to evaluate additional Phase alternative solutions beyond those identified in paragraph A 1.0I .A.4. 5. Services required as a result of OWNER's providing incomplete or incorrect Project information with respect to Exhibit B; provided, such information was to be relied upon by ENGINEER pursuant to Section 6.01.EA of the Agreement. 6. Providing renderings or models for OWNER's use. 7. Undertaking investigations and studies including, but not limited to, detailed consideration of operations, maintenance, and overhead expenses; the preparation of feasibility studies, cash flow and economic evaluations, rate schedules, and appraisals; assistance in obtaining financing for the Project; evaluating processes available for licensing, and assisting OWNER in obtaining process licensing; detailed quantity surveys of materials, equipment, and labor; and audits or inventories required in connection with • construction performed by OWNER. S. Furnishing services of ENGINEER's Consultants for other than Basic Services. Page 5 of 6 pages (Exhibit A — Engineer's Services) • 9. Services attributable to more prime construction contracts than specified in paragraph A1.03.C. 10. Services during out -of -town travel required of ENGINEER other than for visits to the Site or OWNER's office. 11. Preparing for, coordinating with, participating in. and responding to structured independent review processes, including, but not limited to, construction management, cost estimating, project peer review, value engineering, and constructibility review requested by OWNER; and performing or furnishing services required to revise studies, reports, Drawings, Specifications, or other Bidding Documents as a result of such review processes. 12. Providing assistance in. resolving any hazardous Environmental Condition in compliance with current Laws and Regulations. 13. (Modified)• Preparing to- serve or serving. as..a consultant - or �,%Itness for OWNER in any litigation; arbitration or other dispute resolution process related to the Project if ENGINEER' is not a party to the same). 14. Providing more extensive services required to enable ENGINEER to issue notices or certifications requested by OWNER under paragraph 6.01.G of the Agreement. 15. Other services performed or furnished by ENGINEER not otherwise provided for in this Agreement. 16. Property descriptions. 17. (Modified) Property, easement, right -of -way, and other special surveys or data, including establishing relevant reference points. 18. (Added) Environmental assessments, audits, investigations and impact statements, and other relevant environmental or cultural studies as to the Project, the Site, and adjacent areas. 19. (Added) Additional services during construction made necessary by (1) emergencies or acts of God endaneering-tbe,Work,,(2)-an occturencc ofa Ilazar.dous. Environmental, Condition, -(3) Work damage d:b- fire..or other cause during construction, or (4) ,acceleration of..the_.progress schedule involving sery ices : . beyond normal working hours. A2.02. Re,7rrired:Idii;lonulEen�ice5;- A. ENGINEER shall perform or furnish, without requesting or receiving specific advance authorization from OWNER, the Additional Services of the types listed below. ENGINEER shall advise OWNER in writing prior to starting any such Additional Services. 1. Right-of-way/ easement acquisition documents 2. Geotechnical Investigation 3. (Deleted) 4. (Deleted) 5. (Deleted) 6. (Deleted) • Page 6 of 6 pages (Exhibit A — Engineer's Services) This is EXHIBIT B, consisting of 2 pages, referred to in and • part of the Agreement between OWNER and ENGINEER for Professional Services dated Initial: OWNER ENGINEER OWNER's Responsibilities P.rticle 24 the Agreement is amended-and supplemented to include the-following agreement of the parties. B2.01 I n a dd; fion to other. responsibilities of OWNER asset. forth.. in, this Agreement, OWNER shall:. A. Provide ENGINEER. with., all. criteria and: full information as to n.w.NER's requirements- for the-. Project; including design objectives and constraints, space, capacity and performance requirements, flexibility, and expandability, and any budgetary limitations; and furnish copies of all design and construction standards which OWNER will require to be included in the Drawings and Specifications; and furnish copies of OWNER's standard forms, conditions, and related documents for ENGINEER to include in the Bidding Documents, when applicable. B. Furnish to ENGINEER any other available information pertinent to the Project including reports and data relative to previous designs, or investigation at or adjacent to the Site. C. (Modified) Following ENGNEER's assessment of initially - available Project information and data and upon ENGNEER's written request, furnish or otherwise make available such additional available Project related information and data as is reasonably required to enable ENGINEER to complete its Basic and Additional Services. 1. (Deleted). 2. (Deleted). 3. (Deleted). vl. (Deleted): 5. (Deleted). - 6. (Dele.ted): D. (Deleted). E. (Modified) Authorize ENGINEER to provide Additional Services as set forth in Part 2 of Exhibit A of the Agreement as the OWNER determines is necessary. F. (Modified) Arrange for access to and make all provisions for ENGINEER to enter upon public and private property as required for ENGNEER to perform services under the Agreement. G. Examine all alternate solutions, studies, reports, sketches, Drawings, Specifications, proposals, and other documents presented by ENGNEER (including obtaining advice of an attorney, insurance counselor, and other advisors or consultants as OWNER deems appropriate with respect to such examination) and render in writing timely decisions pertaining thereto. Page 1 of 2 pages Pages (Exhibit B - OWNER's Responsibilities) Sheet C -1 (Exhibit C - Basic Services With Determined Scope -- Cost not to Exceed kfethod of Payment) H. (Deleted). 1. (Deleted). J. Advise ENGINEER of the identity and scope of services of any independent consultants employed by OWNER to perform or furnish services in regard to the Project, including, but not limited to, cost estimating, project peer review, value engineering, and constructibility review. K. Furnish to ENGINEER data as to OWNER's anticipated costs for services to be provided by others for OWNER so that ENGINEER may make the necessary calculations to develop and periodically adjust ENGMEE-R's opinion of Total Project Costs. L. (Modified) If OWNER designates a construction rnanager:or an individual or entity-other than-, or in addition. to, ENGINEER to represent .O'h/NER. at the. Site, define and set forth the duties, responsibilities,. and limitations of authority.of such other party and the relation. thereof to the duties, responsibilities, and authority of ENGINEER:. M. Attend the pre -bid conference, bid opening, pre - construction conferences, construction progress and other job related meetings, and Substantial Completion and final payment inspections. N. Provide copies of daily observation reports prepared by OWNER's on -site representative to ENGINEER during construction phase. Page 2 of 2 pages Pages (Exhibit B - OWNER's Responsibilities) Sheet C -2 (Exhibit C - Basic Services With Determined Scope -- Cost not to Exceed Method of Paypnent) • • This is EXHIBIT C, consisting of 1 pages, referred to in and part of the Agreement between OWNER and ENGINEER for Professional Services dated Initial: OWNER ENGINEER Payments to ENGINEER for Services and Reimbursable Expenses Articicr 4 of the Agreement is amended and supplemented: 5. The .portion of the -amount billed. for to include:the following agreement of the parties: .. ENGINEER's services wilt be-based upon._total services . actually completed during.. the.. billing ARTICLE 4 -- PAYMENTS ,r.0 THE ENGINEER period... - C4.01 For Basic Services Having A Determined Scope --Cost not to Exceed Method of Payment A. OWNER shall pay ENGINEER for Basic Services set forth in Exhibit A as follows: I. (Modified) A cost not to exceed amount of $_9S 400 which does not include those Engineer's Consultant's charges as provided belo +v in this Article 4. Subparagraph C4.05, to be distributed at the completion of each of the phase in the following amount: a. Preliminary Design Phase $_41.150 b. Final Design Phase $_41.150 c. Bidding and Negotiating Phase $ 2,700 � d. Construction Phase (See C4.09) $j 3 4QIY e. Post Construdion Phase $___0 _.. 3 2, (Modified) ENGINEER:. may with . the consent : of OWNER alter the distribution or.. compensation between individual phases noted herein to be consistent with services actually rendered, but shall not exceed the total cost not to exceed amount unless approved in writing by the OWNER. 3. The cost not to exceed includes compensation for ENGINEER's services and services of ENGNEER's Consultants (with the exception of those outlined in paragraph C4.05), if any. Appropriate amounts have been incorporated in the cost not to exceed to account for labor, overhead, profit, and Reimbursable Expenses. 4. Deleted. C4.02 For Basic Services Having An Undetermined Scope -- Direct Labor Costs Times a Factor Method of Payment A. (Not Used). C4.03 For Additional Services A. OWNER shall pay ENGINEER for Additional Services as follows: 1. General. For services of ENGINEER's employees engaged directly on the Project. pursuant to paragraph A2.01 or A2.02 of Exhibit A of the Agreement, except for services as a consultant or witness under paragraph A2.01.A.13, an amount equal- to:•ENG1i4EER's Direct•..Labor Costs based: upun..tlxe.;.rate ..schedule-,: which is .attached- as !appendix l of Exhibit C:.and in-_urporated berein fwT all- intents. and putposes;.times a:Fac.tcr.cf�32 talus Reimbursable .:Expenses_ .and ENGINEER's Consultant's charges, if any. Additional Services shall not exceed $ 6.133 without the prior written consent of the Owner. 2, These Charges include: a. Right -of- way /easement acquisition documents - $1,500 b. Geotechnical Investigation - $4,633 (Also see C.4.05) C4.04 For Reimbursable Expenses A. (Modified) When not included it, compensation for Basic Services under paragraph C4.01, OWNER shall pay ENGINEER for Reimbursable Expenses as the rate set forth in Appendix 2 of this Exhibit C. Before Page l o: 2 pages (Exhibit C - Basic Services With Determined Scope -- Cost not to exceed Method) • the OWNER shall be liable for any reimbursable expenses, the ENGINEER must obtain prior written approval of the OWNER of any expense that exceeds $1,000 for which the ENGINEER seeks reimbursement. Reimbursable Expenses shall. not exceed $ 2,000 � without the prior written consent of the Owner. B. (Modified) Reimbursable Expenses include the following categories: mileage, parking tolls, long distance, reproduction of Drawings, Specifications, Bidding Documents, and similar Project - related items in addition to those required under, Exhibit A, and, if authorized in advance by OWNER. C. The an.ounts payable to.:E1NGftirEER for Reimbursable Expenscs•._..awill be the- .Project - related. internal expenses actually incurred or allocated by ENGINEER, plus all invoiced external Reimbursable Expenses allocable to the Project, the latter multiplied by a Factor of ( 1. I 0 ). D. Deleted. E. (Added) The OWNER must approve all travel expenses before the same are incurred. If such approval is not obtained, the OWNER shall not be liable for such travel expenses. C4.05 For ENGINEER's Consultant's Charges A. (Modified) Whenever compensation to ENGINEER herein is stated to include charges of ENGINEER's Consultants, those charges shall be the amounts billed by ENGINEER's Consullaws to ENGINEER tines a Factor of ( L;O —J. 'rhe consultant charges shall not - ex,:eed. the following amounts sp^_cifie• for each of the..follovving se ^,ices, unless approved in writing by-lie OWNER. The charges. include the factor, and are as follows: (1) Geotechnical S 4,633.00 (2) Materials Testing S 0.00 (3) Environmental S 0.00 C4.06 Direct Labor Costs A. Direct Labor Costs means salaries and wages paid to ENGINEER's employees but does not include payroll related costs or benefits. B. (Deleted). 4.07 Factors A. The Direct Labor Costs Factor includes the cost of customary and statutory benefits including, but not limited to, social security contributions, unemployment, excise and payroll taxes, workers' compensation, health and retirement benefits, bonuses, sick leave, vacation, and holiday pay applicable thereto; the cost of general and administrative overhead, which includes salaries and wages of principals and employees engaged in business operations not directly chargeable to projects, plus non - Project operating costs, including but not limited to, business taxes, legal, rent, utilities, office supplies, insurance, and other operating costs; plus operating margin or profit. B. Exterrial Reimbursable - Exp.rses and ENGINEER's Consultant's. Factor:; include E•NGINEER's overhead and profit associated with FN( ;INEER:'s: responsibility for the administration..:of such services and costs. C4.08 Other Provisions Concerning Payment A. Progress Payments. The portion of the amounts billed for ENGINEER's services which are identified in paragraphs C4.01 and C4.03, will be based on the Direct Labor Costs for the cumulative hours charged to the Project during the billing period by all of ENGINEER's employees, times the Applicable Direct Labor Costs Factor, plus Reimbursable Expenses and ENGINEER's Consultant's charges, if any. 04.09 (Added) Disagreements between OWNER and Contractor A. ENGINEER shall request additional compensation related to :services -fcir. heml A 1.04- Construction Phas A.12, if' s.ich work requires - compensation that exceeds - the :!mount-- authorized, for that-phase, of work. Any additioiiar...comp ?nsatton requires advance O VNER approval in writing: Page 2 of 2 Pages (Exhibit C - All Other ServicesiCharges -- Cost not to ,E.rceetl Method of Payment) • ATTACHMENT 1 OF EXHIBIT C — HOURLY RATES Services performed on an hourly basis would be based on the actual direct labor cost rates for members of the staff. The following is a list of typical direct labor costs for various staff categories: Table A -1 Hourly Rates for Engineering Staff: Staff Category Direct Labor Cost Principal $55.00 Senior Project Manager $44.00 Project Manager/ Senior Project Engineer $35.00 Project Engineer $32.00 Design Engineer $27.00 Senior Designer $32.00 CADD Technician/Draftsman $23.00 Construction Observer $21.00 Clerical $18.00 Table A -2 Hourly Rates for Surveying Staff: Staff Category Direct Labor Cost Survey Manager $37.00 Registered Professional Land Surveyor $28.00 Survey Coordinator $25.00 Survey Technician $20.00 Clerical $15.00 Conventional Survey Crew $40.00 Robotic Station Survey Crew $47.00 GPS (Global Positioning System) Crew $47.00 Page 1 of 1 • ATTACHMENT 2 OF EXHIBIT C — REIMBURSEMENT OF COSTS Reproduction and Deliveries: Cost plus 10% Mileage: IRS Rate • Page 1 of 1 This is EXHIBIT E, consisting of 2 pages, referred to in and part of the Agreement between OWNER and ENGINEER for Professional Services dated Initial: OWNER ENGINEER NOT APPLICABLE NOTICE OF ACCEPTABILITY OF WORK PROJECT: OWNER'. OWNER's Construction Contract Identification: EFFECTIVE DATE OF THE CONSTRUCTION AGREEMENT: CONSTRUCTION CONTRACT DATE: ENGINEER: To: OWNER And To: CONTRACTOR The. undersigned. hereby gives notice to the above OWNER and CONTRACTOR that the completed Work.. . furnished. and performcd-..by.-CONTRACTOR - under -- the. above -Ccntiact.. -s, acceptable;...expressly subject -to the provisions of.the related..Contract Documents and the terms and conditions set forth on the revt:rse side hereof.: . By: Title: ` Dated: • Page I of 2 Pages E - Notice of Acceptability of Work) (Reverse side of Notice) • CONDITIONS OF NOTICE OF ACCEPTABILITY OF WORK • The Notice of Acceptability of Work ( "Notice ") on the front side of this sheet is expressly made subject to the following terms and conditions to which all persons who receive said Notice and rely thereon agree: 1. Said Notice- is.given with the skill and care ordinarily used:by members of the.enaineering profession. practicing . under sitniiar conditions at the same time and in the same-locality... 2. Said Notice7reflectsand is an expression of the professional-judgment of ENGINEER: . 3. Said Notice is given as to the best of ENGrNEER's knowledge, information, and belief as of the date hereof. 4. (Modified) Said Notice is based entirely on and expressly limited by the scope of services ENGINEER has been employed by OWNER to perform or furnish during construction of the Project (including observation of the CONTRACTOR's work) under ENGINEER's Agreement with OWNER and applies to facts that are within ENGINEER's knowledge or could or should have been ascertained by ENGINEER as a result of carrying out the responsibilities specifically assigned to ENGINEER under ENGINEER's agreement with OWNER. 5. (Modified) Said Notice is not a guarantee or warranty of CONTRACTOR's performance under the Constntction Contract nor an assumption of responsibility for any failure of the Contractor to furnish and perform the work therunder in accordance with the Contract documents, unless ENGINEER knew or should have known of such failure and failed tonotify the Owner of such failure and take appropriate action so that the same were corrected and brought into compliance with the Contract Documents. Page 2 of 2 Pages (Exhibit K - Indemnification) This is EXHIBIT G, consisting of ? pages, referred to in and • part of the Agreement between OWNER and ENGINEER for Professional Services dated Initial: OWNER ENGINEER U Y1 Insurance Paragraph 6.05 of the Agreement is amended and supplemented to include.. the..following.agreement of the parties. . G6.05 Insurance Throughout the term of this Agreement,. the. ENGINEER at. its.own expense shall-.purchase, maintain and keep in- force and effect insurance against claims for injuries to or death,of persons or damages to property which may arise out of or result from the ENGINEER's operations and/or performance of the work under this Agreement, whether such operations and/or performance be by the ENGINEER, its agents, representatives, volunteers, employees or subcontractors or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable. The ENGINEER's insurance coverage shall be primary insurance with respect to the OWNER, its officers, agents and employees. Any insurance or self - insurance maintained by the OWNER, its officials, agents and employees shall be considered in excess of the ENGINEER's insurance and shall not contribute to it. Further, the ENGINEER shall include all subcontractors as additional insureds under its commercial general liability policies or shall furnish separate certificates and endorsements for each subcontractor. All coverage for subcontractors shall be subject to all of the requirements stated herein. The following is a list of standard insurance policies along with their respective minimum coverage amounts required in this contract: Commercial General Liability (CGL) General: Aggregate: ° $1,000,000. . Products -& -. Corripleted .operations: 51,000,000 Personal & A.Jvcrtising- Injury: $1,000,000 Per Occurrence: V- 100,000 a. Coverage shall be at least as broad as ISO.C.G 00 Of 1093 b. No coverage shall be excluded from standard policy without notification of individual exclusions being attached for review and acceptance. Business Automobile Policy (BAP) Combined Single Limits: 51,000,000 a. Coverage for "Any Auto." Workers' Compensation Insurance Statutory Limits Employer's Liability $500,000 Waiver of Subrogation required Errors R Omissions (E &O) Limit: $500,000 • a. For all engineers, and/or design companies. b. Claims -made form is acceptable. Page 1 of 2 Pages (Exhibit G - Insurance) e. Coverage will be in force for three (3) years after project is completed. • Key Man Life Insurance Limit: $ N/A City of Baytown will be named as the Beneficiary in the event of the Contractor's death. Coverage will be in force for three years after project is completed. • Upon execution of this contract, ENGINEER shall file with the OWNER valid Certificates of Insurance and endorsements acceptable to the OWNER. Such Certificates shall contain a provision that coverage afforded under the policies will not be canceled, suspended, voided, or reduced until at least thirty (30) days' prior written notice has been given to the OWNER via certified mail, return receipt requested. The ENGINEER shall also file with the OWNER valid Certificates of Insurance covering all subcontractors. The followi rig. are..gcn!raI requirements app!i.cable to all policies: a. AM Best Rating of ANTI or better. b. Insurance carriers licensed and admitted to do business in State of Texas will be accepted. C. Liability policies will be on occurrence form. E & O can be on claims -made form. d. City of Baytown, its officials and employees are to be added as Additional Insured to the commercial general liabilityand business automobile policies. e. Upon request of and without cost to City of Baytown, certified copies of all insurance policies and/or certificates of insurance shall be furnished to City of Baytown's representative. Certificates of insurance showing evidence of insurance coverage shall be provided to City of Baytown's representative prior to execution of this agreement. f. Upon request of and without cost to City of Baytown, loss runs (claims listing) of any and/or all insurance coverage shall be furnished to City of Baytown's representative. Page 2 01 2Pages (Exhibit G - Insurance) • • This is EXHIBIT K, consisting of 2 pages, referred to in and part of the Agreement between OWNER and ENGINEER for Professional Services dated Initial: OWNER �y ENGINEER ENGINEER AGREES. -TO AND: SH:ALL.INDEMN:IFY..AND HOLD HARMLESS AND.' :DEFEND OyV'itiER, ITS OFFICERS; AGENTS; AND EMPLOYEES - (HEREAFTER;. WHETHER SINGULAR OR -.1 PLURAL -, COLLECTIVELY REFERRED TO... AS "OWNER ") � FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS AND LIABILITY OF EVERY KIND, INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS, AND ATTORNEY'S FEES, FOR INJURY TO OR DEATH OF ENGINEER OR ENGINEER'S EMPLOYEES (HEREINAFTER, WHETHER SINGULAR OR PLURAL, COLLECTIVELY REFERRED TO AS "ENGINEER "). IN THE EVENT OF PERSONAL INJURY TO OR DEATH OF ENGINEER, SUCH INDEMNITY SHALL APPLY (I) TO THE FULLEST EXTENT ALLOWED BY LAW AND (II) TO THE EXTENT ALLOWED REGARDLESS OF WHETHER THE CLAIMS, LOSSES,. DAMAGES, CAUSES.- OF ACTION,... SUITS OR LIABILITY ARISE `. (I) .IN' *WHOLE. OR IN- PART FRCI!M:' THE, NEGLIGENCE. OF 'OWNE.R.OR (II) IN WHOLE'. OR..IN. TART FROM THE NEGLIGENCE: ' O.F ENGINEER.' IT.. -IS :. THE: . EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH ENGINEER AND OWNER, THAT. THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY ENGINEER TO INDEMNIFY AND PROTECT OWNER FROM THE CONSEQUENCES OF (I) OWNER'S OWN NEGLIGENCE TO THE EXTENT ALLOWED BY LAW, WHERE THAT NEGLIGENCE IS A SOLE OR CONCURRING CAUSE OF THE RESULTING INJURY OR DEATH OF ENGINEER AND /OR (II) ENGINEER'S JOINT AND /OR SOLE NEGLIGENCE. SUCH INDEMNITY SHALL NOT APPLY, 'HOWEVER, TO LIABILITY ARISING FROM THE PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE OF PERSONS OTHER THAN ENGINEER THAT IS CAUSED BY OR RESULTS FROM THE NEGLIGENCE Page I of 2 Pages (Exhibit K - Indemnification) • • OF OWNER. IN THE EVENT THAT ANY ACTION OR PROCEEDING IS BROUGHT ' AGAINST THE OWNER BY REASON OF ANY OF THE ABOVE, THE ENGINEER FURTHER AGREES AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY.. LEGAL COUNSEL ACCEPTABLE TO THE OWNER AND THE ENGINEER. The indemnity provided hereinabove shall survive the termination and /or expiration of this Agreennent: ENGINEER assumes -full responsibility for its work, performed hereunder and: hereby -releases, relinquishes and discharges OWNER, its officers, agents,. and employees from all claims, demands, and causes of action of every kind and character for any injury to or death of any person and /or any loss of or damage to any property that is caused by or alleged to be caused by, arising out of, or in connection with ENGINEER's work to be performed hereunder. This release shall apply with -respect to ENGINEER's work regardless of whether said claims, demands, and causes of action are covered in whole or in part by insurance. The protections afforded to OWNER in this Exhibit K shall control and supercede any apportionment of liability or release of liability contained elsewhere in the Contract Documents. Page 2 of 2 Pages (Exhibit K - Indemnification) This is EXHIBIT L, consisting of 1 pages, referred to in and part of the Agreement between OWNER and ENGINEER for Professional Services dated Initial: OWNER ENGINEER SCOPE OF WORK HARDIN ROAD WIDENING AND DRAINAGE. IMPROVEMENTS PRO -JECT. Background:.. The Hardin Road project includes the large lot subdivision situated at the northeast corner of the intersection of Crosby -Cedar Bayou Road and Massey Tompkins in Baytown, Texas. The project is located south of the Harris County Flood Control District (HCFCD) drainage channel Q112- 03 -00, and has 42 lots within the area. Hardin Road is an existing asphalt roadway with opeu ditch drainage that discharges into the HCFCD channel by means of an existing 4 -foot by 2 -foot concrete box culvert outfall. The City desires to widen Hardin Road from it existing 2 -lane asphalt 18 foot wide condition to a 22 foot wide reinforced concrete roadway with shoulders. It is further understood that the City desires that certain drainage improvements be constructed as part of the project. The drainage improvements are to be based on the drainage study prepared by Pate Engineers, Inc., dated January 17, 2003. The City has requested the preparation of design documents for the proposed improvements. Work Scope and Deliverables: Pate Engineers will perform the following tasks: 1. Surveying- Prcpare 'right -of- way.• /• easement acquisition- documents if -required -for two (2) drainage easemcnts- for the outfall improvements. 2. Geotechnical Investigation- sub - consultant will prepare, geotechnical investigation for the proposed improvements. 3. Preliminary Engineering- Prepare and submit 50% plans and a letter report recommending the proposed improvements. Scope also includes HCFCD submittal and attendance at one (1) review meeting with the City. 4. Final Design(Bid Documents- Prepare design drawings and bid documents (90% and 100% submittals) for the recommended improvements. Scope also includes HCFCD approval and attendance at one (1) review meeting with the City. 5. Bid Assistance- Attend pre -bid conference,' prepare bid tabulation, and make recommendation of contract award. b. Construction Phase Services — Review shop drawings and submittals, review contractor pay estimates for math accuracy, review contractor proposals for change orders as required, and prepare record drawings based on contractor furnished information. The City will provide the following: 1. Any pertinent information in connection with the project. is 2. All required standard City detail sheets for storm sewer bedding and backfill, and typical pavement cross - section details for street/driveway cuts. 3. Subdivision plat for the project area. 4. Right -of- entry/permission to access private property for survey and engineering documentation efforts. 5. Surveying information for potholing accomplished by City forces tied to City datum used for the drainage is study. Exclusion to the Work Scope /Additional Services: Exclusions /additional services will be completed on a time and materials basis and would include but not be limited to the following: 1. Construction staking and field observation. 2, Survey and acquisition documents for additional roadway ROW /easements. 3. Analysis and/or design of any mitigation required due.to the proposed drainage improvements.:... . 4. Additional surveying required for any potential utility relocations. SAStars \Kenk \Baytown \Hardin Rd \Contract \TestEngineering Service Contract - Revised 5 14 03.doc 11